Abortion at heart of Ohio speech case

The Supreme Court will consider Tuesday whether an anti-abortion group can challenge an Ohio law that could have restricted it from publicly accusing a political candidate of voting for taxpayer-funded abortions in Obamacare.

The justices aren’t likely to decide whether the law chills free speech—although Susan B. Anthony List and even the Ohio attorney general say that it does. They’re instead being asked to decide whether SBA List has standing to challenge the law since the group was never prosecuted under it.

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Still, the case has stirred up heated questions about whether the Ohio law and others like it violate First Amendment rights. It’s also reignited the issue of whether the Affordable Care Act contains taxpayer funding for abortion.

The controversy first arose in 2010, when Democrat Steve Driehaus was running for reelection to Congress. In an effort to unseat him, SBA List prepared billboard ads saying “Shame on Steve Driehaus! Driehaus voted for taxpayer-funded abortion.”

The message was in reference to the ACA, which abortion opponents say lacks adequate safeguards to ensure that insurance companies keep taxpayer dollars separate from other funding used to cover abortions.

Although the billboards didn’t go up, Driehaus filed a complaint with the Ohio Election Commission, and a three-member panel found “probable cause” that their planned message could be false. The state statute makes it a crime to knowingly publish false statements about a political candidate.

Driehaus lost his re-election bid, and the complaint was dismissed. But SBA List filed a lawsuit against the commission and the Ohio secretary of state to overturn the law. The group has lost in both federal district court and the Sixth Circuit Court of Appeals, with each concluding that it has no standing to sue because the billboards never actually appeared and the group was never prosecuted under the law.

SBA List contends that requiring groups and individuals to defend the truth of a political comment before the state election commission has an unconstitutionally chilling effect on the right to free speech.

“I’m not out there saying people have the constitutional right to lie,” said President Marjorie Dannenfelser. “But I’m definitely saying if somebody accuses you of lying, you should have the public square as the place where you argue your case, not three people on a commission in Ohio.”

Last week, SBA List announced ads with the same abortion-funding charge against Sen. Kay Hagan of North Carolina, Mary Landrieu of Louisiana and Mark Pryor of Arkansas. But while Louisiana and at least 15 other states have political speech laws similar to Ohio’s, legal experts say that most aren’t enforced.

The Ohio law is “used as a tool” every election cycle, said Ohio lawyer David Langdon, who works with SBA List. “It’s become a part of campaigns, and it’s very speech-inhibiting.”

The American Civil Liberties Union agrees. The group filed an amicus brief with the court arguing that the state’s law punishes people for political speech deemed by the state to be misleading. That should be up to voters to decide, said ACLU Legal Director Steven Shapiro.

“It’s not the state’s role to be the referee of political truth,” Shapiro said. “I think that’s the job of the voters.”

In an unusual move, Ohio Attorney General Mike DeWine is defending the law in his official capacity while personally opposing the law in an amicus brief he submitted to the court. Spokesman Dan Tierney said DeWine has “strong concerns” about the statute but also feels he must defend all state laws.

The argument that SBA List and other anti-abortion groups really want settled by the Supreme Court is whether the 2010 health care law actually does provide for taxpayer funding of abortion—the issue that nearly derailed the legislation before Congress passed it.

But while SBA List is focused on opposing abortion, Dannenfelser said this case’s central question of free speech is crucial to the group’s mission.

“Free speech is the qualifier for any argument, including our argument, abortion,” she said. “If we can’t take that for granted, then we have no ability to argue that abortion is the taking of the life of a person equal to you and me.”